[Congressional Record Volume 149, Number 75 (Tuesday, May 20, 2003)]
[Senate]
[Pages S6711-S6713]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KENNEDY (for himself, Mr. Leahy, Mr. Feingold, and Mr. 
        Lautenberg):
  S. 1086. A bill to repeal provisions of the PROTECT Act that do not 
specifically deal with the prevention of the exploitation of children; 
to the Committee on the Judiciary.
  Mr. KENNEDY. Mr. President, it is a privilege to join my colleagues 
in introducing this legislation on fairness in our Federal sentencing 
system. The Judicial Use of Discretion to Guarantee Equity in 
Sentencing Act, or the JUDGES Act, will repeal a number of 
controversial sentencing provisions that were added at the last moment 
to the recently enacted ``AMBER Alert law'' on missing, abducted, and 
exploited children.
  These provisions--called the ``Feeney Amendment''--have nothing to do 
with protecting children, and everything to do with handcuffing judges 
and eliminating fairness in our Federal sentencing system. As Chief 
Justice Rehnquist said, they ``do serious harm to the basic structure 
of the sentencing guidelines system and . . . seriously impair the 
ability of courts to impose just and responsible sentences.''
  The Judicial Conference of the United States, the American Bar 
Association, the U.S. Sentencing Commission, and many prosecutors, 
defense attorneys, law professors, civil rights organizations, and 
business groups vigorously opposed them. Now that the child-abduction 
legislation has passed, it is the responsibility of Congress to repeal 
these extraneous and ill-considered provisions and begin a serious and 
thorough review of the current sentencing guidelines system.
  The Sentencing Reform Act of 1984 was the result of extraordinary 
bipartisan cooperation. In the Senate Judiciary Committee, over a ten-
year period, Senator Thurmond, Senator Hatch, Senator Biden, and I 
worked with the Carter and Reagan administrations to strike the best 
balance between the goal of consistent sentencing in Federal law and 
the need to give Federal judges discretion to make the sentence fit the 
crime in individual cases. There was also strong bipartisan cooperation 
in the House Judiciary Committee, and we worked together over several 
years to enact a strong, balanced, and bipartisan bill.
  Many judges think the 1984 Act went too far in limiting their 
discretion. Over the years, I have heard many Senators suggest that we 
should give judges more authority to consider the circumstances of each 
offender and the facts of each offense. Enacted without hearings or 
meaningful debate, the Feeney Amendment was a giant step in the wrong 
direction.
  The Feeney Amendment effectively strips Federal judges of discretion 
to impose individualized sentences, and transforms the longstanding 
sentencing guidelines system into a mandatory minimum sentencing 
system. It limits in several ways the ability of judges to depart 
downwards from the guidelines. It overturns a unanimous 1996 Supreme 
Court decision, Koon v. United States, which established a deferential 
standard of review for departures from the guidelines based on the 
facts of the case--thereby undermining what the Court described as the 
``traditional sentencing discretion'' of trial

[[Page S6712]]

courts and the ``institutional advantage'' of Federal district courts 
over appellate courts to make fact-based sentencing determinations.
  The Feeney Amendment also limits the number of judges who can serve 
on the Sentencing Commission, and directs the Commission to amend the 
guidelines and policy statements under them ``to ensure that the 
incidence of downward departures are [sic] substantially reduced.'' It 
also requires the Attorney General to establish a ``judicial 
blacklist'' by informing Congress whenever a district judge departs 
downward from the guidelines. It imposes new, burdensome record-keeping 
and reporting requirements on Federal judges, and requires the 
Sentencing Commission to disclose confidential court records to the 
House and Senate Judiciary Committees upon request. Earlier this month, 
Chief Justice Rehnquist specifically criticized these record-keeping 
and reporting requirements as potentially amounting ``to an unwarranted 
and ill-considered effort to intimidate individual judges in the 
performance of their judicial duties.''
  It was an extreme step for Congress to insist that Federal judges--
appointed by the President and confirmed by the Senate--should not have 
discretion to impose lower sentences in unusual cases, subject to 
appeal. It was even more extreme to pass such a sweeping proposal 
without the benefit of hearings and full debate in either House of 
Congress.
  Because the Feeney Amendment was introduced at the last possible 
moment, Congress was deprived of full and balanced information on 
whether departure decisions are made in inappropriate instances. The 
Justice Department compounded that problem by submitting a highly 
misleading letter on April 4th expressing its ``strong support'' for 
the Amendment. The Department argued that the Amendment was justified 
because an epidemic of lenient sentences was undermining the Sentencing 
Reform Act. It failed, however, to mention that the committee report 
accompanying the 1984 Act anticipated a departure rate of about 20 
percent. Today, the rate at which judges depart from the guidelines 
over the objection of the government is slightly more than 10 percent--
well within acceptable rates.
  The Department claimed that there are too many downward departures 
from the sentencing guidelines, but it failed to mention that, 
according to the American Bar Association, almost 80 percent of these 
departures are requested by the Justice Department itself. In arguing 
for the abrogation of the Supreme Court's ruling in Boon v. United 
States, the Department also failed to mention that it wins 78 percent 
of all sentencing appeals, or that 85 percent of all defendants who 
receive downward departures based on grounds other than cooperation 
with the government nevertheless receive prison time.
  Last week, I asked Michael Chertoff, a nominee to the United States 
Court of Appeals for the Third Circuit, about his involvement in 
drafting the Justice Department's letter of support for the Feeney 
Amendment. He said that he had ``no part in drafting'' the letter, and 
that he did not review the letter before it was sent. In his current 
position as Assistant Attorney General in charge of the Criminal 
Division in the Department, Mr. Chertoff is chiefly responsible for 
formulating criminal law enforcement policy and advising the Attorney 
General and the White House on matters of criminal law. The fact that 
the Department's leading authority on criminal law did not participate 
in writing its influential letter demonstrates the travesty of the 
process that led to the Feeney Amendment's enactment.
  It is important for Congress to undo the damage done to the Federal 
criminal justice system. The JUDGES Act, which we are introducing today 
and which Congressman Conyers is introducing in the House, repeals the 
provisions of the Feeney Amendment that do not specifically involve sex 
crimes or crimes against children--the purpose of the underlying child-
abduction legislation to which it was attached. In the place of these 
ill-advised changes to Federal sentencing law, the JUDGES Act directs 
the Sentencing Commission to report to Congress within 180 days on the 
incidence of downward departures from the Sentencing Guidelines. The 
Commission's report will provide Congress with useful information to 
evaluate the need for reform, including information on rates of 
departures by district, circuit, offense, and departure ground. It will 
also provide a review of departure appeals, an assessment of the extent 
to which departures affect the guideline system, and an assessment of 
variations in the magnitude of departures and the frequency with which 
the final sentences result in imprisonment, other conditions of 
confinement, or release.
  When completed, the Commission's report will provide a solid basis 
for further action by Congress. We need to hold hearings; collect the 
relevant data; consult with the judges, the Sentencing Commission, the 
Justice Department, the defense bar, and other authorities; and decide 
whether legislation is needed to improve the sentencing guidelines. If 
judges are abusing their discretion, we should limit it. If more 
discretion is appropriate, we should provide it. In the words of Chief 
Justice Rehnquist, ``Before such legislation is enacted there should, 
at least, be a thorough and dispassionate inquiry into the consequences 
of such action.''
  It was a serious mistake for Congress to enact the Feeney Amendment 
over the strong objections of the Chief Justice, the Judicial 
Conference, the American Bar Association, the Sentencing Commission, 
and the overwhelming majority of prosecutors and defense attorneys who 
deal with the guidelines on a daily basis. The JUDGES Act will correct 
this mistake and set us on the right path to achieving any necessary 
reforms. I urge my colleagues to support it.
  I ask unanimous consent that the following letter from the Leadership 
Conference on Civil Rights, the National Association of Criminal 
Defense Lawyers, the National Legal Aid and Defender Association, the 
National Association of Federal Defenders, and Families Against 
Mandatory Minimums be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:
                                                     May 20, 2003.
     The Hon. Edward M. Kennedy,
     U.S. Senate, Washington, DC.
       Dear Senator Kennedy: The undersigned organizations write 
     to express our strong support for the JUDGES Act. Under the 
     guise of addressing crimes against children, the recently 
     enacted PROTECT Act (S. 151) effected broad and ill-
     considered changes to our federal sentencing system. In 
     repealing those provisions that are not limited to child-
     related and sexual offenses, the JUDGES Act would help 
     restore judicial discretion to impose just sentences in most 
     federal cases.
       Enacted without hearings or meaningful debate, Title IV of 
     the PROTECT Act (the ``Feeney Amendment'') represents the 
     most dramatic change to federal sentencing law since passage 
     of the Sentencing Reform Act of 1984. It threatens to deprive 
     judges of discretion to impose individualized sentences and 
     transform the federal sentencing guidelines into a near-
     mandatory minimum sentencing systems. As with mandatory 
     sentences, Title IV will increase unwarranted sentencing 
     disparities and disproportionate sentences, and erode public 
     confidence in our federal justice system.
       No reliable evidence was offered to justify this 
     curtailment of judicial discretion. On the contrary, 
     statistics indicate that the overwhelming majority of 
     sentences, other than those requested by the government to 
     reward defendants for assisting in the prosecution of others, 
     are within the range specified by the sentencing guidelines. 
     Significantly, nearly 80 percent of all downward departures 
     are requested by the government to reward assistance to the 
     government or to manage the high volume of immigration cases 
     in certain border districts.
       These statistics solidly discredit title IV's most 
     disastrous provision--Section 401(m), which orders the 
     Sentencing Commission to amend the guidelines so as to 
     substantially reduce the number of departures. The JUDGES Act 
     repeals that provision in favor of a neutral study of 
     departures by the Sentencing Commission.
       In carefully considering and enacting the Sentencing Reform 
     Act of 1984 and eventually approving the Sentencing 
     Guidelines, Congress struck a careful balance between 
     sentencing uniformity and judicial discretion. Title IV of 
     the PROTECT Act upsets this balance without justification and 
     without due consideration for the opposing views of the 
     federal judiciary, the Sentencing Commission, the bar and 
     many diverse groups from the left and right.
       We appreciate your leadership in this area, and we look 
     forward to working with you in support of the JUDGES Act.
         Leadership Conference on Civil Rights, National 
           Association of Criminal Defense Lawyers, National Legal 
           Aid and

[[Page S6713]]

           Defender Association, National Association of Federal 
           Defenders, Families Against Mandatory Minimums.
  Mr. LEAHY. Mr. President, I am very pleased to join the senior 
Senator from Massachusetts and Senators Feingold and Lautenberg in 
introducing the Judicial Use of Discretion to Guarantee Equity in 
Sentencing Act of 2003, or the JUDGES Act. This bill will restore 
judicial discretion in Federal criminal sentencing, a responsibility 
that was all but stripped away in controversial, extraneous provisions 
that were added to the AMBER Alert law enacted last month.
  I was deeply disappointed when the Republicans took the bipartisan, 
non-controversial AMBER Alert bill and added numerous unrelated and 
ill-considered provisions. One set of provisions, collectively called 
the Feeney Amendment, blithely overturned the basic structure of the 
carefully crafted sentencing guideline system without any serious 
process in either the House or the Senate, and over the strong 
objections of the Nation's most senior jurists. Speaking about the 
original Feeney Amendment, the Chief Justice of the United States 
wrote: ``This legislation, if enacted, would do serious harm to the 
basic structure of the sentencing system and would seriously impair the 
ability of courts to impose just and responsible sentences.'' I commend 
Senator Kennedy for trying to repair the harm done in the Feeney 
Amendment by introducing the JUDGES Act today.
  Rather than directly address important measures to protect our 
children, the AMBER Alert conference committee effectively rewrote the 
criminal code on the back of an envelope. First, the final language 
established one set of sentencing rules for child pornographers and a 
more flexible set of sentencing rules for other Federal defendants, 
including terrorists, murderers, mobsters, civil rights violators, and 
white collar criminals. No one here believes that sex offenders deserve 
anything less than harsh sentences, but I cannot understand why we 
would treat the terrorists better.
  Second, the conference report overturned a unanimous Supreme Court 
decision, Koon v. United States, by establishing a new standard of 
appellate review in all departure cases. This provision, like so many 
others in the Feeney Amendment, is not limited to cases involving 
children. The Court in Koon interpreted the departure standard in a way 
that limited departures but left some room for judicial discretion. By 
contrast, the enacted provision appears to require appellate courts to 
consider the merits of a departure before it can decide what standard 
of review to apply to the merits. This sloppy drafted, circular 
provision is likely to tie up the courts in endless litigation, 
draining already scarce judicial resources, and costing the taxpayers 
money.
  In addition, the Feeney Amendment effectively created a ``black 
list'' of judges that stray from the draconian mandates of the new law. 
The enacted amendment attempt to intimate the Federal judiciary by 
compiling a list of all judges who impose sentences that the Justice 
Department does not like. Again, this provision is not limited to 
crimes against children, but applies in any type of criminal case. It 
takes a sledge hammer to the concept of separation of powers.

  In justifying this assault on Federal judges, my colleagues on the 
other side of the aisle claimed that there was a ``crisis'' of downward 
departures in sentencing. In fact, downward departure rates are well 
below the range contemplated by Congress when it authorized the 
Sentencing Guidelines, except for departures requested by the 
government. The overwhelming majority of downward departures are 
requested by federal prosecutors to reward cooperation by defendants or 
to manage the high volume of immigration cases in certain border 
districts. When the government does not like a specific downward 
departure, it can appeal that decision, and it often wins--
approximately 80 percent of such appeals are successful. The Feeney 
Amendment, forced through Congress with virtually no debate, was a 
solution in search of a problem.
  The legislation that I join Senator Kennedy in introducing today will 
repeal those provisions of the Feeney Amendment that veered from the 
underlying purpose of the AMBER Alert bill. Specifically, it will annul 
those sections that do not specifically involve crimes against children 
or sex crimes, effectively reversing the Feeney Amendment's attack on 
judicial discretion.
  The JUDGES Act will provide accurate and complete information on the 
incidence of downward departures in sentencing--a set of data that we 
were denied when the Feeney Amendment was adopted in the AMBER 
conference. This bill directs the Sentencing Commission to conduct a 
comprehensive study on sentencing departures and report to Congress 
within 180 days. This is the type of review Chief Justice Rehnquist 
called for in his letter opposing the original Feeney language. He 
urged the Congress to engage in a ``thorough and dispassionate 
inquiry'' before changes were made to the Federal sentencing structure. 
That request was dismissed by supporters of the Feeney Amendment, but 
still deserves full consideration by the Congress.
  Finally, the JUDGES Act will reverse a provision that goes beyond the 
Feeney Amendment, having been added to the AMBER Alert bill during the 
conference committee's one meeting. This provision limits the number of 
Federal judges who can serve on the Sentencing Commission. I, for one, 
believe that judges are extremely valuable members of the Commission. 
They bring years of highly relevant experience, not to mention reasoned 
judgment, to the table. The Republicans apparently believe that their 
expertise is of limited value.
  The JUDGES Act is a reasoned correction to the far-reaching 
provisions enacted in the Feeney Amendment. It will restore the 
integrity of the Federal sentencing system by allowing judges to impose 
just and responsible sentences. I urge my colleagues to support this 
important legislation.
                                 ______